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Hitas v. United States

United States District Court, M.D. Florida, Jacksonville Division

June 27, 2019

ANDREW HITAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          BRIAN J. DAVIS, UNITED STATES DISTRICT JUDGE

         This case is before the Court on Petitioner Andrew Hitas's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255 Motion).[1] The United States responds that the § 2255 Motion is untimely. (Civ. Doc. 5, Response). Hitas has replied. (Civ. Doc. 6, Reply). Hitas also moved to amend his reply brief (Civ. Doc. 7, Motion to Amend Reply), to which the United States has responded (Civ. Doc. 9; Response to Motion to Amend).[2] Additionally, Hitas filed a “Motion for Judicial Notice in Light of Seventh Circuit Ruling, ” which the Court accepts as a notice of supplemental authority (Civ. Doc. 11, Notice), and an “Ex Parte Motion for Information Pursuant to Obtaining Sentencing Transcripts and Complete Docket Sheet, ” (Civ. Doc. 12, Ex Parte Motion). The § 2255 Motion is ripe for a decision.

         Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has determined that a hearing is not necessary to resolve the merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 motion is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief). For the reasons set forth below, Hitas's § 2255 Motion is due to be dismissed.

         I. Background

         On October 20, 2011, a grand jury charged Hitas with two counts of receiving child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1) (Counts One and Two), and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2) (Count Three). (Crim. Doc. 1, Indictment). Hitas initially pled not guilty to the charges. (See Crim. Doc. 11; Minute Entry of Arraignment and Detention Hearing).

         On December 19, 2011, Hitas pled guilty to Count One of the Indictment pursuant to a written plea agreement. (See Crim. Doc. 21, Minute Entry for Change-of-Plea Hearing; Crim. Doc. 23, Plea Agreement). In exchange, the United States agreed to dismiss Counts Two and Three. Plea Agreement at 3. On March 20, 2012, the Court sentenced Hitas to a term of 84 months in prison, to be followed by a 60-month term of supervised release. (Crim. Doc. 32, Judgment; Crim. Doc. 36, Sentencing Tr. at 21-22). The Court entered judgment on March 22, 2012. Hitas did not file a notice of appeal. More than four years later, on June 18, 2016, Hitas filed the instant § 2255 Motion.

         II. Discussion

         Hitas's § 2255 Motion and Reply are not a model of clarity, but the general argument seems to be that 18 U.S.C. §§ 2252(a)(2) and (b)(1) are void for vagueness under the “far-reaching implications” of Johnson v. United States, 135 S.Ct. 2551 (2015). § 2255 Motion at 1. Hitas further contends that his motion is timely under 28 U.S.C. § 2255(f)(3) because Johnson announced a new rule of law that applies retroactively on collateral review. The United States responds that the § 2255 Motion is untimely because Johnson has no relevance to Hitas's case.

         In Johnson, the Supreme Court held that the Armed Career Criminal Act's (ACCA's) “residual clause” is unconstitutionally vague. 135 S.Ct. at 2557.[3] The residual clause defined the term “violent felony” as a crime punishable by a term of imprisonment exceeding one year that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court explained that “[t]wo features of the residual clause conspire to make it unconstitutionally vague”: first, the residual clause “leaves grave uncertainty about how to estimate the risk posed by a crime” because it “ties the judicial assessment of risk to a judicially imagined ordinary case' of a crime, not to real-world facts or statutory elements”; and second, the residual clause “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise ‘serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction.” Johnson, 135 S.Ct. at 2557-58.

         The child pornography statutes under which Hitas was convicted and sentenced, 18 U.S.C. §§ 2252(a)(2) and (b)(1), do not contain any provisions that remotely resemble the residual clause. Nevertheless, Hitas apparently draws a connection between Johnson and § 2252 based on 18 U.S.C. § 3156(a)(4), which defines the term “crime of violence” for purposes of the laws governing release on bail. Section 3156(a)(4) defines the term “crime of violence” to mean

(A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another;
(B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense; or
(C) any felony under chapter 77, 109A, 110, or 117….

18 U.S.C. § 3156(a)(4). Receipt of child pornography is a felony under chapter 110, and thus qualifies as a “crime of violence” under § 3156(a)(4)(C). Meanwhile, Hitas contends that § 3156(a)(4)(B) is unconstitutionally vague because of its resemblance to the residual clause. Thus, Hitas seems to think that because receipt of child pornography is defined as a “crime of violence” alongside ...


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